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On May 6, 2019, Senate Bill 0007 was introduced which would legalize recreational marijuana use in Illinois. Governor Pritzker touted the plan as a vital source of revenue for the state and as necessary first step to expunging the criminal records of approximately 800,000 people who have been incarcerated or charged with marijuana-related offenses.

Some important points contained in the plan include:

Illinois residents over the age of 21 would be allowed to legally possess 30 grams of cannabis flower, 5 grams of cannabis concentrate, and 500 milligrams of THC in a cannabis-infused product.

Marijuana products would be taxed at a rate from 10% to 25% depending on type and THC content.

Local governments would be permitted to: prohibit the establishment of cannabis dispensaries in their jurisdiction if they “opt out” within one year of the passage of the Act, or alternatively by local referendum; levy their own sales taxes on marijuana products, these taxes may be imposed in .25% increments and cannot exceed 3%; enact reasonable zoning restrictions and/or rules governing cannabis establishments; and establish civil penalties for violating time, place, and manner regulations within their jurisdiction.

Certain individuals arrested for possessing, delivering, or growing marijuana in the past would be eligible to have their criminal record expunged.

Employers would still be able to determine their own drug policies.

While this bill is only in the preliminary stages and further amendments to it are likely, ZRFM will continue to monitor it as it progresses through the state legislature.

ZRFM is proud to announce the publication of the 2019 Edition of Handbook for Newly Elected Officials: A Practical Guide to Local Government written by Richard G. Flood and Ruth Alderman Schlossberg of the firm and published by the Illinois Municipal League. This is the fourth edition of the book. This spring and summer, our newsletter will publish occasional excerpts from the book on topics that may be of interest both to newly elected officials and to long-standing readers. If you have any comments or questions about these excerpts or wish to receive a copy of the handbook, please email rschlossberg@zrfmlaw.com.

Here is an excerpt from Chapter Seven of the Book about Communications with Residents, Staff and Elected Officials: Dealing with a Divided Board:

Ideally, you and your colleagues on the board or council will work together in relative harmony toward a generally accepted common goal. There will, of course, be times when reasonable people will disagree, and there will likely be moments of vigorous debate when you formulate policy. However, if you recall your “Carver on Governance” lessons, you will remember that once the board votes on an issue, the winning position becomes the board’s official position. At some point, if you want to move forward and be an effective leader, you must accept the final decision. However, we acknowledge that not every board works in harmony and that divided and divisive boards happen for all sorts of reasons – sometimes because strong differences of opinion exist, sometimes because styles are different and sometimes because personalities or a previous history of conflict gets inthe way. With that in mind, here are some of our thoughts and suggestions for you to consider when board battles have become a way of life.

• Ask yourself if you are angry over a matter of principle or a matter of personality. If it is personality, then consider whether you have a duty to your constituents to make things work. Be careful not to confuse righteous indignation with possible arrogance or stubbornness.

• If you and your colleagues disagree about a few big issues, but not on all issues, try not to let this interfere with the business of governance. Consider moving those issues to a special meeting or a workshop where you can explore them in more detail. This should free up your regular meetings for conducting business and may prevent your disagreements from negatively impacting all aspects of government operations.

• Is there any possibility for compromise? Can you acknowledge your opponent’s position on some issues if they will acknowledge yours on some? Not every conflict needs to have one winner with everyone else as losers. Sometimes everyone can win on something and everyone can compromise on something less important to them.

• If your disagreement involves hiring personnel, keep those disputes in private/executive session. It is good practice, when possible, to bring new employees on with a sense of welcome and potential. If you were opposed to a specific hire, but you are clearly outnumbered, then consider when the time comes for a public vote to extend an offer or ratify a contract in open session, it would be both gracious and likely better for the future of your municipality to arrive at a unanimous vote.

• Remember that your staff does not report to each board member individually. Rather, they are tasked with carrying out the directives of the board – not just one faction. They should not have to guess what would make you happy in your individual capacity. Instead, they should be permitted to move forward with board directives. Remember the Carver model discussed earlier in this book suggesting that the board should “speak with one voice” and that “dissent is expressed during the discussion preceding a vote. Once taken, the board’s decisions may subsequently be changed, but are never to be undermined.”

• It is also useful to remember who your staff reports to. In most towns they take their directives from a manager or administrator or alternatively from the mayor or president. It is not fair or appropriate to ask each individual staff member to report directly to each elected official. Similarly, if you have a complaint or concern about the performance of a staff member, you should speak to the proper supervising authority and not take it upon yourself to give direction to your staff. If you would like to speak directly to a department head or staff about a matter of concern, it is courteous to clear this first with the manager or their supervisor to ensure that they do not feel pressured or uncomfortable being asked to report on their work to individual board members who may have objectives that differ from the board as a whole.

• For the leadership, you may want to establish a written policy regarding governance, so it can always be pointed to in instances where there is disagreement. The written policy might make it less personal.

• A workshop or visioning session may be helpful in addressing the differences you have. Certainly, a day devoted to the issues that separate you is a small sacrifice if it helps address the problem. Take advantage of the Illinois Municipal League’s self-evaluation services through an exception to the Illinois Open Meetings Act that allows the corporate authorities to meet in closed session for specified subjects. 5 ILCS 120/2(c)(16).

• If a dispute between two board members seems to be more related to personalities than to principles, then enlisting a neutral third party to conciliate may be useful to help the two arrive at some common ground. As appropriate, the third party may be a manager, another trustee or even the attorney who can help the parties see each other’s perspective.

• Consider socializing with your fellow elected officials. You may continue to disagree, but it is more difficult to be rude or hostile to someone with whom you have just had lunch.

• If you have tried all the above and your meetings continue to deteriorate, try to take the long view. Municipal elections occur every other year. Attempt to be civil and courteous, and then bring your case to the public. That is what elections are for.

In February, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-003. Like many PAC opinions, this one addressed a situation in which a public body — in this case, the Village of Ringwood — failed to respond at all to a FOIA request. Unsurprisingly, the opinion held that the Village had a duty to respond to the FOIA request.

The more important take-away from this PAC opinion, however, is the reminder that because the Village public body had failed to reply in a timely manner under Section 3(d) of FOIA, the Village would be prohibited both from imposing a fee for copies and from treating a request as unduly burdensome when it did ultimately reply (as it was ordered to do). This is a useful reminder to public bodies of the importance of timely compliance and communication with FOIA requesters.

At the same time, however, it is important to note that even in the event a public body is ultimately ordered to comply with an FOIA request following a previous failure to comply, apart from these 3(d) exceptions related to fees and “unduly burdensome” exceptions, public bodies are still allowed to assert any of the otherwise authorized exemptions under FOIA. They are not required to produce information that would have been exempt if produced in a timely manner. The PAC implicitly acknowledges this fact in a footnote in which it mentions that some of the items that might have been responsive to the request might have been exempt under FOIA, but the PAC could not make that determination because the Village had not responded to the PAC’s correspondence.

ZRFM is proud to announce the publication of the 2019 Edition of “Handbook for Newly Elected Officials: A Practical Guide to Local Government” written by Richard G. Flood and Ruth Alderman Schlossberg of the firm and published by the Illinois Municipal League. This is the fourth edition of the book. This spring and summer, our newsletter will publish occasional excerpts from the book on topics that may be of interest both to newly elected officials and to long-standing readers. If you have any comments or questions about these excerpts or want to receive a copy of the handbook, please email rschlossberg@zrfmlaw.com.

Here is an excerpt from Chapter 2 of the book about “Where You Fit in the Big Picture: Law and Theory.” This is excerpted from a longer discussion of why it is a mistake to think that local governments can or should always “operate like a business” and some of the challenges that are unique to government operations:

• Government is Intended to Meet Objectives That Cannot be Measured by Profit

The third major difference between local government and business is that most, if not all, businesses have profit as a primary motive. The usual purpose of a business is to make money for the owners, to provide gainful employment for the employees and to pay dividends or increase value for any stockholders. With such clear and primary goals, decisions can more easily be debated and determined, and outcomes measured.

By contrast, the function of a municipality is not to make money. Municipalities offer services, not profits. Services performed by the municipality and supported by tax dollars are intended to assist municipal residents in ways that the private sector cannot do in the absence of a profit motive. While governments strive to provide such services at a reasonable price, very few government programs are meant to make a profit. For instance, the purpose of issuing traffic or parking tickets is not to produce a profit. Rather, it is intended to make the residents safer. Parks are offered to enhance community welfare. Sewer, water and building codes are imposed to enhance public health and safety. In addition, because of the many regulations imposed on local governments often in the interests of the public’s safety or welfare, it can be very difficult for governments to control or cut their costs as readily as the public might expect. Accordingly, when an elected official considers a proposal, the decision making process can be complex and multifaceted, and outcomes cannot be measured in profitability or increased value. The concerns of and the benefits to residents must be weighed along with cost and other factors to arrive at a responsible decision.

Not only must government meet objectives that differ from the relatively clear mandate of making a profit, but government also delivers services that most of its customers must accept whether they want those services or not. Citizens must live with the decisions of the elected officials regarding the choices they make about such things as streets, water and sewer services, ordinances and law enforcement even if they believe the wrong decisions have been made. In the private sector, the citizen has the choice to simply not purchase a product, but the citizen has no such choice regarding most public services. Citizens can vote in the next election, but in the meantime, they cannot easily choose not to use a public road or to simply ignore ordinances with which they disagree. Because it is neither necessarily appropriate nor possible to please everyone all the time, the result is that some of your “customers” will be unhappy regardless of what choices you make, but short of moving, they cannot simply take their government needs elsewhere.

• Governmental “Success” is Difficult to Quantify

A fourth major difference between local government and business is the difference between residents and customers. In business, the way to maximize profits is to satisfy customers. You sell the best product at the lowest price. By contrast, municipalities have a much more complex relationship with their residents. Residents are not normally billed for each service they receive. Rather they pay for services through their taxes, which for many municipalities are primarily real estate taxes.

Accordingly, residents often do not necessarily relate their demands for the best service to the cost of these services through their taxes. Because they are not buying one service at a time, it is difficult for a resident to weigh whether they are paying too high a “price” through taxes for the “service” or “product” (e.g., police protection, streets, etc.) they are receiving. The result is that a resident sees no contradiction in asking for better police services while simultaneously demanding lower taxes.

Additionally, local governments do not have owners as traditionally understood in the business world. While taxpayers theoretically own their local government, it is an ownership that cannot be valued or sold, nor does it show a profit. The result is that the taxpayer does not treat his or her ownership in the traditional sense. Often, the taxpayer does not feel like an owner or a part of the local government. The taxpayer views the local government as belonging to and operated by others. He may own it, but he does not control it. And, unlike business, local government does not need to market its services. Although in a more general sense, governments do market themselves to have residents choose to live there and do business, most of the services provided by local government (police protection, sewer and water) are provided to all regardless of whether individual residents want the service. Most services are mandatory, as are the taxes imposed to support them.

When weighing a decision, learn to ask questions that are not traditional in the business world. Instead of asking if a proposal will make a profit, learn other criteria for weighing a proposal. How many residents are affected? How many will it help? How well can we provide the service? What will it cost? Can we provide it for less, and if so, how? Will it adversely impact any residents? How many? How can we design it to benefit the most residents? Can the private sector provide this service better than local government? What if we do not provide the service?

An Illinois Appellate Court held recently that a police officer who suffered a career ending “catastrophic injury” while participating in a simulated riot control training exercise was not entitled to health coverage benefits under section 10 of the Public Safety Employee Benefits Act (PSEBA). The Court opined that the injury occurred while the plaintiff was treating a training simulation as a real-life emergency which did not qualify as a true emergency as defined in PSEBA.

The plaintiff, a former Peoria police officer, was injured in February 2015 while participating in a mandatory riot control exercise. The exercise included a “briefing/classroom” session and a field simulation. After the classroom portion, while responding to the simulated riot, the plaintiff fell on icy pavement and struck her head. Fellow officers asked the plaintiff if she could continue, and she indicated that she could. The plaintiff completed the training and did not obtain medical treatment until the next day. In arguing that she should receive full PSEBA health insurance benefits under section 10(a), the plaintiff claimed that her injury was in response to what she “reasonably believed to be an emergency” under section 10(b). At an administrative hearing held pursuant to City code, the hearing officer denied the plaintiff PSEBA benefits.

Section 10(b) requires that, to receive the health benefits afforded by section 10(a), the officer’s injury “must have occurred as the result of the officer’s response to . . . what is reasonably believed to be an emergency.” In determining that what the plaintiff faced could not reasonably have been believed to be an emergency, the Court first noted that the Illinois Supreme Court has defined an “emergency” under Section 10(b) as “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

The Court then analyzed two Illinois Supreme Court cases involving firefighters injured during training exercises. In the first, a firefighter’s hose became fouled during an exercise, requiring him to backtrack through live fire and smoke with zero visibility. The Supreme Court found the exercise became an emergency when the hose became entangled, stranding the crew with no visibility, water, or option of ending their participation. The second case involved a firefighter attempting a simulated “downed firefighter” rescue while operating with a blacked-out mask along a predetermined path with no live fire. If at any time the firefighter ran out of air, he was to terminate the exercise. Here the Supreme Court determined that no emergency existed and 10(b) was inapplicable, the salient factor being that while the firefighter was told to treat the situation as an emergency, no unforeseen circumstance arose similar to that faced in the first case and at all times the conditions were controlled.

The Court found the plaintiff’s situation was more akin to that faced by the second firefighter than the first. The simulated riot was preceded by a briefing which explained what was going to occur. Furthermore, the icy surface that caused the plaintiff’s fall, though unforeseen, could not be “reasonably believed” to create an emergency. This simulation, under controlled conditions, created “no actual imminent danger to plaintiff or her colleagues, requiring an urgent response.” Finally, the Court found it important to note that the plaintiff was asked whether she wished to continue the exercise after her fall, an option that would not be available in an actual emergency.

This case is important as it points out that PSEBA benefits will likely not be available to officers suffering serious injury during training exercises where no unforeseen emergency situation arises.

In a recent case, People v. Mueller, 2018 IL App. (2d) 170863 (2019), the Second District Appellate Court held that driving on a lane dividing line does not constitute the offense of improper lane usage under 625 ILCS 5/11-709(a). Police officers should pay particular attention to this holding because violations of Section 11-709(a) often serve as the basis for traffic stops to detect impaired drivers. Notably, the Court’s analysis in Mueller does not overrule existing cases that allow 11-709(a) to serve as a basis for a traffic stop when a motorist is weaving or driving erratically within their lane, even if they do not cross a lane line.

In Mueller, testimony of a McHenry County Sheriff’s Deputy at the hearing on the motorist’s motion to suppress provided the basis for the trial court’s ruling that a violation of Section 11-709(a) did not occur, and the Deputy’s seizure of the motorist was not valid. The Deputy testified that he observed the vehicle’s driver’s-side tires roll onto the yellow center line for a few seconds without crossing the line. The vehicle returned to its lane, but the Deputy could not recall if the vehicle did so smoothly or abruptly. Further down the road, the passenger-side tires of the vehicle temporarily touched the fog line but never crossed the line. The vehicle moved back into its lane without any unusual actions. Lastly, the vehicle’s passenger’s-side tires momentarily drove onto the fog line again but never crossed the line. The Deputy performed a traffic stop and conducted a DUI investigation resulting in the motorist being placed under arrest for DUI.

In granting the motorist’s motion to suppress, the trial court reasoned that simply driving on the center line or the fog line did not create a reasonable suspicion that a motorist violated Section 11-709(a). In upholding the trial court’s ruling, the Second District Appellate Court analyzed what constitutes a “lane” for purposes of Section 11-709. While the Illinois Vehicle code does not define the word “lane,” the Court reasoned, relying in part on the Illinois Secretary of State’s rules of the road, that a line is considered part of the lane. A motorist does not commit a violation of Section 11-709(a) by merely driving on the lane line.

An important take-way from the opinion is the Court’s analysis of the State’s forfeited trial court argument that the motorist violated Section 11-709(a) by weaving or driving erratically within her lane. The Court’s holding leaves weaving or driving erratically within a single lane of traffic as a basis for a traffic stop under Section 11-709(a) untouched. As a result, before an officer performs a traffic stop of a vehicle for a violation of Section 11-709(a), the officer must observe the vehicle cross over a lane line paying attention to whether the lane deviation is caused by a roadway condition such as a pot hole, debris, or a curve in the roadway. If the lane deviation is not due to one of these conditions, a violation of Section 11-709(a) has occurred and the officer can validly stop the vehicle. If a vehicle does not cross over a lane line, the vehicle’s movement within its lane must be erratic or constitute weaving in order to justify a traffic stop under Section 11-709(a). The officer performing the traffic stop must be able to clearly articulate the observations that served as the basis for the traffic stop both in their police report and during their testimony at any suppression hearing. The officer must be able to articulate the facts supporting the traffic stop and create a clear record for the appellate court if the trial court’s ruling on the motion to suppress is challenged by either side.

On January 1, 2019, Public Act 100-0996 (the “Act”) went into effect, amending the existing School Safety Drill Act by adding a requirement that children be present for schools’ annual active shooter drills. Previously, the School Safety Drill Act allowed schools to conduct the annual active shooter drill on a day when students were not present. The Act eliminates this discretion and puts an affirmative duty on schools to conduct the active shooter drill on a day when students are normally present so as “to evaluate the preparedness of school personnel and students.” Schools must also coordinate with local law enforcement to observe administration of the drill. If a mutually agreeable date for the drill cannot be agreed upon, the school must proceed with the drill absent local law enforcement involvement. Finally, the Act includes a requirement that the active shooter drill be conducted no later than 90 days after the first day of the school year. School districts and local police departments should be ready to coordinate on this drill and meet the new requirements of the Act for the upcoming 2019 school year.

Public Act 100-1132, which took effect on November 28, 2018, amends the definition of “firefighter” under the Public Safety Employee Benefits Act (the Act) to include paramedics, emergency medical technicians (EMTs), emergency medical technician-intermediates (EMT-I), or advanced emergency medical technicians (A-EMT) employed by a unit of local government. As such, these emergency medical personnel who do not perform firefighter functions will be entitled to the same employment benefits under the Act as law enforcement officers, firefighters, correctional and correctional probation officers. The Act provides lifetime employer-funded health insurance benefits to these employees and their families if they are killed or injured in the line-of-duty while responding to an emergency. Home rule units are not exempt from the Act and are subject to this amendment.

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-002 in which it stated its position that Section 2.06(g) of the Illinois Open Meetings Act (OMA) requires that any rules limiting the public comment period of an open meeting be established and recorded. The fact that a restriction at issue is a well-established past practice over a period of years is insufficient if that restriction is not also recorded in the public body’s formal rules.

This PAC opinion arose from a request for review alleging that the Lyons Elementary School District Board of Education (the Board) violated OMA during an October meeting by enforcing a rule limiting the total public comment portion of the meeting to 15 minutes. After it became common knowledge that the Board had hired a teacher with a serious criminal charge on his record, approximately 100 parents and other members of the public attended the meeting, many of whom wished to speak. When the Board enforced a rule limiting the public comment to 3 minutes per speaker and 15 minutes total, a number of those wishing to speak were denied the opportunity. The Board pointed out that its policy manual, in Board Policy 2.230, specifically limited each speaker to 3 minutes in usual circumstances. Additionally, the Board’s Welcome Handout, which is placed on a table next to the agendas and sign in sheet at every Board meeting, limits public comment to 3 minutes per speaker and 15 minutes per topic, per meeting. This portion of the Welcome Handout is read aloud prior to public comment at every Board meeting. This had reportedly been the Board’s practice for at least 10 years.

First, the PAC noted that Section 2.06(g) of OMA expressly provides that individuals are entitled to address a public body subject to “the rules established and recorded by the public body.” While OMA does not address the types of rules that a public body may enforce, ordinarily only “reasonable time, place, and manner restrictions” which are content-neutral are permissible in such a public forum under the First Amendment to the U.S. Constitution. Furthermore, such rules must be reasonably necessary to protect a significant governmental interest and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials.

The case turned on the plain meaning of Section 2.06(g) and whether the rule at issue was both “established” and “recorded.” The PAC determined that the restriction of the comment period to 15 minutes was clearly established. However, this rule was not recorded as required by Section 2.06(g). While the Welcome Handout included the time restriction, the restriction was not included in Board Policy 2.230. While the rule had been the practice of the Board for 10 years and was read aloud at prior to all public comment periods, this did not “address the discrepancy between the Welcome Handout and Board Policy 2.230.” The PAC also noted that the Board “had not asserted that it had taken formal action to adopt the policies in the Welcome Handout, or that Board Policy 2.230 had been revoked or otherwise formally amended.” The PAC concluded that past practices that have not been incorporated into a public body’s formal rules are not “established and recorded” pursuant to Section 2.06(g) of OMA and cannot be enforced to limit public comment.

Accordingly, local governments should review their formally adopted rules governing public comment at meetings and ensure that they are consistent with what is intended and what has been practiced.

The case involved a local official in Virginia, Phyllis Randall, chair of a county board, who created a Facebook page the day before assuming office to communicate with and interact with residents. In February 2016, a frequent local government critic, Brian Davidson, posted an accusatory comment to the page about some local school board members. Randall deleted the subsequent exchange with Davidson and then blocked him from posting further comments to the page. Davidson filed a lawsuit alleging that by blocking him, Randall had committed “viewpoint discrimination.”

Randall argued that while she did discuss her government role on her Facebook page, she had essentially created the page as a private citizen and that it was a vehicle for her own private speech, not primarily a forum related to her governmental role. Furthermore, Randall argued that Facebook was a private company with its own rules for appropriate conduct. The court was unmoved by Randall’s arguments, first noting specifically that Randall had selected the option indicating that the page belonged to a “government official” when creating the page. The court further viewed Facebook as a distinctly public space in contrast to Randall’s assertion that it was a private forum. The court specifically stated, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a government building?”

The Fourth Circuit is the first jurisdiction to rule on this issue. A case is also pending in the U.S. Fifth Circuit Court of Appeals involving a similar situation where a sheriff’s office in Texas blocked a citizen from its Facebook page. It is only a matter of time before the Supreme Court weighs in on the issue. Municipal officials should be cognizant of the fact that social media connected to their governmental role can be construed as a public forum. Until the court systems further refine the issue, it is recommended that any official who wishes to maintain the rights of a private citizen refrain from using a Facebook profile to invite discussion on public issues.